Can Facebook Live videos be considered as evidence?

Social media seems to evolve from minute to minute. Previously, we explored the admissibility of social media posts as evidence in a trial, and what obstacles there were into admitting the post. In Trail v. Lesko, No. GD-10-017249, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194 (C.P. July 3, 2012), the Court gives examples of cases where access to social media was granted by a court due to the user having already posted “evidence” that was accessible by opposing party and therefore showing a likelihood that additional information that was pertinent to the case would be located therein. However, that case did not consider the issue of authentication of a post, which has been addressed in a recently decided case here in Florida.

The case of Lamb v. State, 246 So. 3d 400 (Fla. 5th DCA 2018) recently addressed the question if “Facebook Live” videos were self-authenticating. “The mere fact that an item appears online does not make it self-authenticating. Predicate testimony to establish its authenticity or to prove the truth of its content may be required.” Id. at 415 (quoting Dolan v. State, 187 So. 3d 262, 266 (Fla. 2d DCA 2016)). However, a court’s standard for establishing self-authentication is a “low threshold that only requires a prima facie showing that the proffered evidence is authentic; the ultimate determination of the authenticity of the evidence is a question for the fact finder.” Id. at 416 (quoting Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016)).

In Lamb, the State attempted to admit a Facebook Live video posted by a co defendant that portrayed the defendant and co defendant in a stolen vehicle. Lamb, at 300. Moreover, the video was posted shortly after the car hijacking had occurred. Id. The video was authenticated in the trial court by visiting one of the codefendants’ public Facebook page, looking for videos posted within the carjacking time frame, finding the Facebook Live video, downloading the video, and confirming that the video which was sought to be introduced into evidence was the same as the video posted on the codefendants’ page. Id. However, the defense argued that confirmation from the defendant, co defendants, or other witnesses who appear in the video, or from someone who recorded the video was necessary to authenticate the video. Id.

Nevertheless, the Court chose to follow the standard set forth in U.S. v. Broomfield, 591 Fed. Appx 847 (11th Cir. 2014): “[A] video’s distinctive characteristics and content, in conjunction with circumstantial evidence, are sufficient to authenticate the video.” Lamb, at 300. Thus, in Lamb, The circumstantial evidence of the defendant appearing in the stolen vehicle, with the codefendant, at a time shortly after the reported car hijacking was sufficient to present to the jury to make a determination of how much credibility they would give to the video.

In an age where social media laws are changing as fast as the platforms themselves, always use caution and consideration when uploading videos. The internet is forever. If you believe you may have some legal issues regarding an uploaded facebook live video, call us to schedule a consultation with one of our experienced attorneys. We may be reached at (786) 837-6787.

*Disclaimer: This blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*